Kannon Shanmugam on the State of the Constitution
Articles,  Blog

Kannon Shanmugam on the State of the Constitution


>>Jane Sanchez: Good afternoon, and welcome to the
2019 Commemoration of Constitution Day. My name is Jane Sanchez, and I serve as the 25th
Law Librarian of Congress. Constitution Day, officially
known as Constitution Day and Citizenship Day, is a federal holiday
observed each year to commemorate the signing
of the U.S. Constitution on September 17, 1787, and
to, quote, “Recognize all who, by coming of age or
by naturalization, have become citizens.” Senator Robert C. Byrd of West
Virginia included key provisions in the Consolidated
Appropriations Act of 2005, designating September 17 as Constitution Day
and Citizenship Day. The Act also required
that public schools and governmental offices should
provide educational programs to promote a better
understanding of the Constitution. As such, the Law Library of Congress annually hosts
Constitution Day programming to highlight the Constitution and the freedoms it
grants all Americans. Although it was signed
230 years ago, it is the longest-surviving
charter of government that inspired democratic
ideals and principles of freedom throughout the world. On your way in today, I hope
you stopped to see a demo of our new Constitution
Annotated website that launched today. We worked on this for years,
as Karen Lewis can attest, and the Constitution
Annotated, that we call Conan, like “the Barbarian,” is
the most comprehensive, government-sanctioned record of interpretations
of the Constitution. Conan is a source for
anyone who wants to learn about America’s founding
document. It is still in print
in hardbound editions, published every ten years, with
the next one scheduled in 2022. However, to keep up with
Congress’ fast-paced workflow, in real time, the library and CRS spearheaded
the modernization of Constitution Annotated. The new website URL
is easy to remember: Constitution.Congress.gov. So today, I am very pleased
to introduce Kannon Shanmugam. Kannon, welcome to the Library
of Congress, and thank you for helping us commemorate
Constitution Day. Kannon is a partner in the
law firm of Paul, Weiss, Rifkind, Wharton & Garrison. He heads their Supreme
Court and Appellate Court, Appellate Litigation Practice,
and is managing partner of the firm’s Washington office. Kannon is widely
recognized as one of the nation’s premier
appellate advocates, and he has argued 27 cases
before the Supreme Court. I hope my numbers are correct. Several cases he argued
were significant business and criminal cases. Beyond the Supreme Court, he
has argued dozens of appeals in courts across the country. Kannon served as assistant
to the Solicitor General at the U.S. Department
of Justice. Born and raised in
Lawrence, Kansas, he received an AB Summa Cum
Laude in Classics from Harvard, an M. Lit in Classics from
the University of Oxford where he was a Marshall Scholar,
and a JD Magna Cum Laude from Harvard Law School. At the law school, Kannon
was Executive Editor of the Law Review, and he
argued for the winning side of the Ames Moot
Court Competition. After graduation, he
served as Law Clerk to Judge J. Michael Luttig
on the U.S. Court of Appeals for the Fourth Circuit, and
to Justice Antonin Scalia on the U.S. Supreme Court. Before we start, I
wanted to mention that we are allowing some time
at the end of Kannon’s talk for questions and comments,
and I encourage you to use that as an opportunity to
jump into the conversation. Thank you. [ Applause ]>>Kannon Shanmugam: Well,
thank you very much, Jane. It is an honor and a privilege to give the Constitution Day
speech here at the Library of Congress, one of the nation’s
most important institutions, and in particular at the Law
Library, the greatest library of its kind in the world. Thank you very much for
inviting me to be with you. Now when I was preparing
to give this speech, my first question was
how did the tradition of Constitution Day
actually begin? And as with many
American traditions, the answer to that
question is rather murky. It appears that the Iowa
Legislature was the first to provide for an official
Constitution Day observance, all the way back in 1911. It decreed the Constitution
Day should be held today, September 17, the anniversary
of the Constitution’s signing. On a national level, Constitution Day was originally
not even Constitution Day at all. After the legendary newspaper
mogul William Randolph Hearst advocated for a national holiday
to celebrate citizenship, Congress passed a law in 1940,
to designate I am American Day. That day was later
given the less catchy, but more descriptive
title of Constitution, of Citizenship Day, and in
2005, as Jane mentioned, Congress officially redesignated
September 17 as Constitution Day and Citizenship Day,
so I’m doubly honored to be your speaker
for both holidays. [Laughter] And I intend to
give my Constitution Day speech first, followed by my
Citizenship Day speech. In all seriousness,
you’ll be pleased to hear that there’s only
one speech today. [Laughter] Now, this is a
particularly special occasion for me as the son of immigrants and first-generation American
citizens, and as someone who owes so much to this
country and its Constitution. My parents emigrated to this
country from India in the 1960s. They came with few material
possessions, but they came here in the belief that in
America, anything was possible. Even with that belief, I doubt that they would have
ever imagined that some 50 years later, their
son would be standing here in this place giving
a speech honoring the American Constitution. But the genius of America is that there is nothing
exceptional about my being here today. And in any number of
ways, both big and small, it is the Constitution
that made it possible. But I’m here today not
to talk about myself, but to talk about
the Constitution, and this seems not
just an appropriate day but an appropriate time
in our nation’s history to reflect on the Constitution. As hard as it is to believe,
we are a few months away from the start of a
new decade, the 2020s. In that decade, we will
celebrate the nation’s 250th birthday, the semiquincentennial,
if you prefer. When I was born, the midpoint
in our nation’s history was in the 1870s, just a few
years after the Civil War. The midpoint of our nation’s
history will soon be 1900. A longer period of
time has now elapsed since Ronald Reagan’s
inauguration, 38 years, than between that
inauguration and the end of World War II, 36 years. Yet while time moves on, our Constitution has
remained remarkably static. It has been amended
only once in my lifetime with the unusual ratification
of the 27th Amendment in 1992. And if you want to read more
about the 27th Amendment, you should go to the
Constitution Annotated. [Laughter] In an era of rapid
and profound social change, the Constitution stands
serene and supreme. Now the title of my
speech today is The State of the Constitution,
and as all of you know, the Constitution itself
requires the President to give Congress
a periodic report on the state of the union. By the way, the Constitution
does not require the President to do so in the form of a speech
or even to do so every year. In their State of
the Union addresses over the last few decades, our presidents have almost
invariably described the state of the union as strong, but what about the state of
the Constitution? Well, I am pleased to
report today that the state of the Constitution
is also strong. To begin with, what
all of us know, the Constitution is arguably
the most important non-religious text ever written. The oldest written national
Constitution, it has served as the model for countless
other constitutions worldwide, and its influence
stretches well beyond new and developing countries. Just in the last decade alone,
Britain created a Supreme Court that was plainly modeled on the
United States’ Supreme Court in a worthy, if somewhat belated
effort, to create a separation of powers similar to that
in our own Constitution. To see the original Constitution
in the National Archives, all four pages of it, is to feel
a sense of awe at its simplicity and wonder at its longevity. The genius or our
Constitution is that it establishes
general principles that have applied
across generations. In so many respects, the America of today bears little
resemblance to the America of 1787 when the
Constitution was signed. The founders could hardly have
imagined that the President of the United States
would communicate with the people primarily through a medium
known as Twitter. And yet, the fundamental
structure of the government and the fundamental
rights guaranteed by the Constitution
remain largely the same. On the rare occasion that
the Constitution has codified mistakes, whether big ones
such as slavery or smaller ones such as prohibition, the people
have amended the Constitution to correct them. The founders could not have
imagined how the Constitution is working today, but I
think they would agree that it is in fact working. While the state of the
Constitution is strong, however, that is not to say
that it is perfect. There are always tensions in
our Constitutional system, and the Constitution is today
facing certain challenges. I want to talk to you
today about what I see as the most significant of those
challenges from the perspective of someone who practices law
before the Supreme Court, and who has worked in all
three branches of government over the course of my career. And by way of a disclaimer, what I’m about to say
is not a commentary on any particular president
or Congress or Supreme Court. Rather, I intend to
make some observations about important recent
trends that bear on our constitutional system, trends that predate
the incumbents in all of those offices. So let me start with the basics. The fundamental focus of the
Constitution is on the structure of our government and on the
allocation of responsibilities between the three branches
of government: legislative, executive, and judicial. That is the subject of
the first three articles of the Constitution which make up the vast majority
of the original text. The text says hardly anything
about individual rights. Almost all the guarantees
of rights in the Constitution can
be found in the Bill of Rights or later amendments. In fact, the founders
believed that the separation of powers would itself
provide ample protection for individual rights. In the Federalist Papers,
Alexander Hamilton even went so far as to suggest that the
Bill of Rights was unnecessary. In his words, “Why should
it be said that the liberty of the press should
not be restrained when no power is given with which restrictions
may be imposed?” While few today would go that
far, it is certainly true that the limitations
the Constitution imposes on the branches of
government, the so-called checks and balances, serve to
protect individual freedoms by carefully enumerating
the powers of government, and ensuring that no one branch of government becomes
too powerful relative to either the other
branches or the public. The provisions of the Constitution
governing the separation of powers have remained largely
the same since the founding with some minor tweaks
such as the 17th Amendment which provided for the
direct election of senators and the 22nd Amendment which limited the
president to two full terms. While the balance of
power between the branches of government has
shifted at various times in American history,
the checks and balances between the branches
have remained robust. But my basic thesis
today is this: the balance of power right now
is out of kilter in three ways. The resulting imbalance is
having a distorted effect on our system of government
and it needs to be addressed. The first and most
obvious structural problem involves Congress. In Article One of
the Constitution, the founders literally
started with Congress, and they viewed it as the
predominant political branch. In fact, in drafting the
Constitution, James Madison and others were concerned
primarily with limiting Congress’ powers so that it would not
become too dominant. In recent years, however,
the opposite has occurred. Congress has become
dysfunctional and increasingly unable to
address major policy issues. To begin with, Congress is
simply passing fewer laws of any variety. In the 1970s and 1980s, Congress
averaged approximately 700 laws per two-year session. In the last decade, Congress
is passing somewhere closer to 300 laws per session. In the current session
which began in January, Congress has thus far
passed only 56 laws. And that number is, if anything, less impressive than
it might sound. According to one
study, about one-third of the laws Congress passes
are largely ceremonial ones that rename post offices,
award medals, and yes, designate holidays like the
one we’re celebrating today. The problem with Congressional
dysfunction, moreover, transcends the political
parties. While Congress passed a
modestly greater number of laws in the 2017-2018 session when one party controlled
both houses, the power of the minority
political party to threaten to filibuster legislation in the Senate today effectively
assures gridlock regardless of who has majority
control in each house. If anything, the situation is
even more dire when it comes to major policy issues. To take an example, I
suspect that everyone in the room would agree that
the immigration crisis is one of the most important
issues currently confronting our country. Yet there is no realistic
possibility that this Congress
will pass any sort of comprehensive
immigration reform. In fact, the last time that Congress passed a
major immigration law was in 2005, nearly 15 years ago. Think back to the last
commercial you saw from a member of Congress running
for re-election. Did that Senator or
Representative claim credit for any specific
legislative achievements? Probably not because
there aren’t enough of them these days to go around. Now to be sure, a skeptic could
argue that the dysfunction in Congress is not a bad thing because the last thing we
need is more legislation. That argument is
not without force. In terms of sheer volume, we
have plenty of laws as it is, and when Congress does
act, it often does so with insufficient
precision and insufficient heed for its limitations on
its enumerated powers that the founders imposed. But my point here is simply
that Congress’ failure to confront major policy
issues is creating a vacuum in our separation of powers. Now why did Congress
become so dysfunctional? Well, the answer to that
question is beyond the scope of this speech. Many have cited the
greater polarization of the two major political
parties with the result that members of Congress have
less incentive to compromise, and indeed often an affirmative
incentive not to compromise. Others have cited
the fact that members of Congress spend less
time in Washington and therefore less time spent
on the process of law-making. The evidence also suggests that
there is less time allocated for floor debates on proposed
legislation, ironically at least in part because the Senate
is devoting much of its time to considering judicial
nominations. More on that subject
a little bit later. But whatever the explanation, the status quo is
beyond dispute. Congress is not robustly
performing its function of making the laws,
and that brings me to the second structural problem
currently afflicting our system of government. The law-making vacuum left by
Congress has largely been filled by the executive branch. Sometimes it is the President
himself who fills the vacuum. Presidents of both parties, frustrated by Congressional
inaction, have increasingly been
acting unilaterally through executive orders. But more often it is
not the president, but rather a dizzying array
of departments and agencies that have essentially
replaced Congress in the business of law-making. In the best-case scenario,
those agencies engage in a process known as notice
and comment rule-making which at least allows the public
the opportunity to learn about and comment on proposed
regulations before they become law. In the worst-case scenario,
those agencies dispense with the rule-making
process altogether, and adopt interpretations of the
law through more informal means, then seek to enforce
those interpretations as if they were binding. At least in theory, when an
agency adopts a regulation, it is purporting not
to enact legislation, but rather to interpret
legislation that Congress has
previously enacted. In practice though, many
regulations look exactly like statutes, the kind of
provisions that Congress enacts or at least used to enact. In this library, the code
of federal regulations, which compiles all of the
regulations promulgated by federal departments and
agencies, now takes up almost as much shelf space as
the United States Code which compiles all of the
statutes passed by Congress. And on the rare occasion that Congress does
legislate nowadays, it often delegates broad
authority to an agency to perform what is effectively
a law-making function, sometimes because it is more
politically expedient to be seen to be legislating on
a particular topic than to specify the details
of the legislation itself, and sometimes because
Congress simply cannot agree on those details and cedes
the field to agencies instead. To make matters worse, Congress
has not been content simply to pass the buck by delegating
authority to agencies, ti has attempted to insulate
agencies from the President in an effort to ensure that presidents cannot
completely control the law-making function either. In ceding the law-making field,
Congress has created a class of so-called independent
agencies that have effectively come to form a fourth
branch of government. Thus, when Congress created the
Consumer Financial Protection Bureau, it placed dramatic and
indeed unprecedented limitations on the President’s ability to remove the bureau’s
director from office. And I should note that
I’m currently involved in a case challenging
the constitutionality of those limitations
before the Supreme Court. Well, the problem
with reallocation of the law-making authority
from the legislature to these agencies is obvious. There is no branch of government
more accountable to the people than the legislative
branch, experience the House of Representatives, whose members are
elected every two years. But there is probably
no component of government less
accountable to the people than the departments
and agencies that line the streets
of Washington. The employees of those
agencies are well-meaning, but they scarcely resemble and
often have little connection to the average Americans whose
interests they represent. Rather remarkably, but
perhaps unsurprisingly, when the Secretary of Agriculture proposed moving
two components of his department from Washington to Kansas City,
in the part of the country where American farmers
actually, you know, farm, he faced a massive revolt,
and yet the employees of the Department of Agriculture
and other government departments and agencies are accountable
to the voters only indirectly, through the president if at all. The resulting imbalance
between Congress and the executive branch and
worse yet, the fourth branch, is not what the founders
had in mind when they established the
constitutional separation of powers. The law-making vacuum left by Congress have been filled not
just by the executive branch, but also by the judicial
branch, and that brings me to the third structural problem
that I want to discuss today. The founders contemplated
that the judiciary would be, in the famous words
of Alexander Hamilton, “The least dangerous
branch,” yet the judiciary and the legal system more
generally play a larger role in American life today than
the founders could ever have imagined. I was born in 1972, the week after Richard Nixon was
re-elected in a landslide. But in the nearly
50 years since then, the Supreme Court has waded into virtually every
area of American life. And indeed, it is difficult to
identify a major policy issue that the Supreme Court
has not addressed, at least to some
extent, during that time. Almost all of the major issues of the day are now ultimately
resolved by the judicial branch. If you have any doubt
about what I just said, about the growing role of the
federal judiciary more generally or the Supreme Court
in particular, try the following experiment. The Supreme Court issues its
most important decisions every year at the end of June when the
court finishes its annual term. Next June, make a list
of all of th subjects that those decisions touch. Then make a similar list
of all of the subjects on which Congress has
legislated over the last year. I’m willing to wager that
the first list will be longer and more substantial. Although the court has not
yet filled its calendar for the upcoming term,
it is already expected to issue major decisions
on immigration, gun rights, gay and lesbian rights, religious liberties,
and water pollution. It is a safe bet that
Congress will not legislate in the next year
on even a fraction as many substantial issues. What is more, the federal
judiciary takes a muscular view of its role. There is almost no
matter that is thought to be beyond the judicial
competence to resolve. Earlier this year, the
Supreme Court refused to take up the question of
whether gerrymandering, the drawing of electoral
district lines to favor one political
party over another, violates the Constitution
on the ground that such claims presented
political questions that were not subject
to judicial resolution, but that was very much the
exception that proves the rule, and the court came
within one vote of reaching a different result. In the last 50 years, the Supreme Court has
effectively decided a presidential election, and
addressed the most politically and socially divisive issues, often curtailing
democratic debate on those issues in the process. Now my point here
is not that any of those decisions was
necessarily incorrect as a substantive matter. Instead it is a more modest one. .The federal judiciary is
confident of its ability to resolve almost any issue. And rightly or wrongly, the American people
have increasingly come to expect it to. I said that the law-making
vacuum left by Congress has been filled
both by the executive branch and by the judicial branch. As a result, perhaps
not surprisingly, we have seen an increasing
number of clashes between those two branches. As I alluded to earlier,
there is currently a growing and important debate about whether executive
branch agencies are entitled to deference when they
interpret statutes, or whether statutory
interpretation is instead the exclusive province
of the judiciary. Beyond that, however, it seems as if every major
executive action, whether by a Republican
president or by a Democratic one,
is immediately challenged in litigation by well-organized
political opponents. Whether on the ground that the
executive branch exceeded its constitutional or statutory
authority, or on the ground that the executive branch
reached its decision improperly as a matter of administrative
procedure. In the last three years alone,
we have seen such challenges to the president’s so-called
travel ban, his decision to add a citizenship
question to the 2020 census, and his decision to reverse
his predecessor’s decision not to enforce the immigration
laws against the DREAMERS, all of which have ended
up in the Supreme Court. Ironically, President
Obama’s previous policy on the DREAMERS was
also the subject of an immediate challenge,
and it too ended up in the Supreme Court. I express here no view about
the merits of those challenges, but as a result of
those challenges, the judiciary has had
the final word on many of the executive branch’s
most important policies. And once again, courts
have exercised that authority muscularly with
a number of courts going so far as to enter nationwide
injunctions against those policies,
provoking a vigorous debate about whether a court in a
single local district has such an expansive power. Given the growing role
of the federal judiciary, it is not surprising that
both political parties are increasingly focused
on the process by which judges are selected. Not just for the Supreme Court, but for the lower
courts as well. As a result, the process by which our federal judges
are confirmed has also become dysfunctional. As most of the major issues
of the day ultimately end up in the court, the
confirmation process has come to focus evermore on
outcomes, how judges will vote on particular issues
than on the quality of the judges being nominated
and their dedication to the rule of law and to resolving
disputes impartially. In particular, confirmation
hearings have, quote, “Deteriorated into
question and answer sessions in which senators
go through a list of their constituents’
most favored and most disfavored alleged
constitutional rights and seek the nominee’s
commitment to support or oppose them.” The words in that last
quotation are not my own. They came from an
opinion written by the man for whom I served
as a law clerk, the great Supreme Court
Justice Antonin Scalia, nearly 30 years ago. Justice Scalia was
predicting what would happen if the Supreme Court continued to decide major policy issues
outside the democratic process. And in that prediction,
he was entirely correct. Since the nomination of Robert
Bork to the Supreme Court, the confirmation process has
progressively deteriorated and the contagion has spread
from the Supreme Court to lower courts as well. Whereas Justice Scalia
was unanimously confirmed to the Supreme Court, less
than four decades ago, senators of the opposite
political party now reflexively oppose virtually all of a
president’s judicial nominees, even for the lowest courts. A recent study showed that three of the Democratic senators
currently running for president, had voted against
every single one of the president’s judicial
nominees in this Congress, with two others voting
against more than 90% of them. While judges are still being
confirmed, that is entirely due to the coincidence that the
president and the Senate are in the hands of the
same political party. When that is no longer the case, whether because we have
a Democratic president and a Republican
Senate or vice versa, the confirmation process will
surely grind to a complete halt. In addition, judicial nominees
are now subject to a level of scrutiny far greater than
even our elected officials, with opposition researchers
going so far as to pore over college newspaper articles
in an effort to unearth dirt that can be used in a
confirmation process, as if such articles
shed any insight on how a judge would rule on a
case a generation or more later as an adult and as a lawyer. One might well wonder why
any sane person would want to subject himself
to that process. I can attest from first-hand
knowledge that a growing number of the very best
lawyers in the country, many of whom have
led upstanding lives and would make magnificent
judges, are simply saying,
“No, thank you.” I have come to the structural
problem with the judiciary last, but it seems to me to
be the most concerning. The judiciary is
increasingly being viewed not as a neutral forum for
adjudicating disputes according to objective legal principles, but rather as a third
political branch. Under that view, law is simply
politics by another means. The most expedient way of
achieving political ends that because of gridlock or other reasons cannot
be achieved democratically through the political process. In my opinion, that view is
inimical to the Constitution. The growing perception that
judges are simply politicians in robes is having
a corrosive effect on our legal system
and the rule of law. When I have a case in the
lower courts, it is not unusual for a client to ask me whether
the judges were appointed by Democratic or
Republican presidents. Yet for the rule of law to mean
anything, judges must be not above the political process
but outside it altogether, and we must be able to attract
the best and the brightest in the legal profession to
serve in the judicial branch. I used to think that
the structural problem with the judicial branch
could be solved simply by appointing judges who take
an appropriately restrained view of the judicial power, by
faithfully interpreting the text of the Constitution and statutes
and according due respect to the coordinate
branches of government. But I now think that in order
to address that problem, we also need to address the
other structural problems I have identified. As long as Congress is unable
to act, someone will need to fill the law-making vacuum. And as long as the executive
branch is attempting to fill that vacuum itself, the judicial
branch will be called upon to review the executive branch’s
exercise of that authority. The beauty of the separation of powers our founders
established is that the three branches of
government operate as a kind of three-way teeter-totter. But if you’ve ever been
on one, it’s impossible to get a three-way
teeter-totter to work when one of the participants in the game
is not exerting any weight. [Laughter] That is why I believe that of the three
issues I have identified, the most pressing is
Congress’ inability to act. At the beginning of this speech,
I spoke about my parents. My father, who passed away two
years ago, would often speak about what a special
moment it was when he raised his right
hand and took the Oath of American Citizenship. My wife, too, is an
immigrant, and it was one of the most special moments of
my life when Justice Scalia, my former boss, administered
to her the Oath of Citizenship. Justice Scalia, too, was the son
of immigrants, a common thread in our country’s history. In that citizenship
oath, new citizens swear that they will support and
defend the Constitution of the United States of
America, but in fact, all of us, whether new citizens or
natural-born ones share that obligation and on this day, this day that honors both the
Constitution and citizenship, all of us need to redouble
our own efforts to ensure that our system of
government continues to operate as the founders intended. In this speech, I have
identified a number of concerns about the Constitution, but
I want to close with this. In fact, I have great optimism,
great optimism about the future of America and the continued
vitality of our Constitution. President Reagan would
often use the analogy that America was a
“city on a hill.” If that is true, I think the
Constitution is out lighthouse, the beacon that guides
us and guides us home through both common
choppy waters. Our country faces very
real challenges today. You might think that our
country is in choppy waters, but in fact, it has come through
far more troubled waters, and in no small part, that
is thanks to the durability of our constitutional structure. Some 230 years after
it was ratified, our Constitution continues
to be the envy of the world. And for all of its flaws, our constitutional system
remains the best system of government ever devised. There is certainly no country
in which I would rather live and in large part that is
due to the Constitution. As a lawyer practicing
before the Supreme Court, it is a privilege to play a
modest role in the functioning of that system, and it is a
great privilege I’ve had the chance to celebrate Constitution
Day with you here today. Thank you again for inviting me, and I really appreciate
the opportunity to be with you today. [ Applause ]>>Jane Sanchez: Questions? Please don’t be shy.>>Kannon Shanmugam: Yes, Ma’am?>>Audience Participant: Is
there any other president in the history of this country
who has been denied the right– is there any other president
besides President Obama who has been denied the right to
make a Supreme Court nomination?>>Kannon Shanmugam:
Well, I will say this without specific reference to what took place
ironically enough in the wake of the passing of my
former boss, Justice Scalia. As I said in my remarks, we have
seen a progressive degradation of the nomination process. I traced it in my remarks to
the nomination of Robert Bork because I think that that was
the first time in modern history when a nomination to the
Supreme Court was blocked really because concern about
the outcomes that the nominee would reach. But the reality is that I
think folks in both sides of the confirmation process
share that focus on outcomes, and I think that what has
taken place with nominations in more recent years is
entirely reflective of that. There was of course a vigorous
back and forth in the Senate about whether a vacancy
in the last year of a presidential term
can and should be filled, and about the historical
precedent on that. I’m not going to get into that
debate, but what I will say is that I think our
constitutional system in some sense tolerates
what is taking place. After all, all that
the Constitution says about the judicial
confirmation process is first that the president has the
power to nominate, and second, that the Senate has the
power to advise and consent to either approve or reject
the president’s nominee. I am reminded of what
Jane Austin said in one of her novels, and you’ll
forgive the inevitable gender imbalance to what
I’m about to say. She said, “When it comes to
marriage, men have the power of choice, and women have the
power of refusal,” [laughter]. And in some sense that is sort of the constitutional structure
vis-a-vis the president and the Senate when it comes
to judicial nominations. So I think it’s unfortunate. I think that it is
noteworthy that members of the Supreme Court,
whether appointed by Democrats or Republicans, have
bemoaned this trend in the nominations process. Indeed as recently as last week,
Justice Ginsberg gave a speech in which she made the same point
that I just did, that she wished that the confirmation process
focused less on outcomes and more on the qualifications
of judicial nominees. I can assure you that I wrote
my remarks before I read Justice Ginsberg’s speech. [Laughter] Other questions? Yes, Ma’am?>>Audience Participant: I would
surmise that the number of, as you were talking
about the numbers of laws has decreased markedly
in the last several Congresses, how about the level of cases that the Supreme Court has
accepted for [inaudible]?>>Kannon Shanmugam: So
that’s a great question. The number of cases that the
Supreme Court is hearing has also declined, but I think
that that’s a little bit of a misleading indicator,
and I will explain why. Justice Scalia was fond of telling his law
clerks inevitably when we were complaining about
how hard we were working, that when he got to
the Supreme Court, the Supreme Court
was hearing somewhere in the neighborhood
of 150 cases a year. The year before last, the
Supreme Court heard 59 cases. And the Court is now
averaging somewhere between 60 and 70 cases per year. The Supreme Court, unlike
lower federal courts, is a court of discretionary
jurisdiction. It gets to choose which cases
it hears, which is a luxury that trial courts,
district courts, and courts of appeals
do not have. And there’s no doubt that the
Supreme Court is exercising that discretion more sparingly. The Supreme Court still
seems to have plenty of space on its docket to decide what I
think we would all agree are the most consequential issues. As that list that I gave you from the upcoming
Supreme Court term where the court has granted
review on only about 35 cases so far, the Court is still
filling its term reflects. But I think you have to think
about this holistically, and you have to think
about it not just in terms of the Supreme Court,
but in terms of the lower federal
courts as well. The Supreme Court will
typically grant review only when the lower courts are in
disagreement on a point of law. I think the Supreme Court
views it as its primary task to essentially referee
disputes that arise in the lower courts
on questions of law. So what has I think
happened in recent years is that the lower courts have
actually gotten pretty good at reducing the number of times
that they create those conflicts and sometimes avoiding creating
those conflict entirely. But again, I think that the
trend towards the muscular exercise of the judicial power,
you know, remains unabated even with the decline in
the number of cases that the Supreme Court hears. So, you know, it
isn’t as if Congress in passing fewer laws
is still passing a lot of major legislation. In fact, Congress is
passing fewer minor laws and fewer major laws. The Supreme Court, by contrast,
continues to decide year in and year out, regardless of which president is
nominating new justices, incredibly consequential
issues for American life. And again, my point here
today is not to comment on particular outcomes,
but simply to note the fact that the Supreme Court is really
serving as the final arbiter on so many issues, and I think
in part because of the dynamic in the other two political
branches that I discussed today. Several questions. I’ll let the person with the
microphone be the referee. Yes, Ma’am?>>Audience Participant:
Yes, you spoke about– first, thank you
for your speech. You spoke about Congress’
gridlock. In your opinion, what can be
done to jumpstart productivity in Congress and help
overcome the gridlock?>>Kannon Shanmugam:
You know as I said, I think that that’s a
very difficult issue and in some sense I think it’s
probably above my paygrade as Supreme Court advocate. I just deal with what comes out. I don’t deal with what goes
in, but I do think that all of the factors that I identified
have been noted by people who are closer observers than I
am of the legislative process. I do think that there is
certainly less bipartisanship today and a greater
degree of polarization between the political parties. And again, there
are a lot of factors that have probably
contributed to that, but certainly there doesn’t
seem to be much willingness to compromise in
Washington these days. The reality is that
Washington is– this will come as
news to everyone– rather unpopular in the rest
of the country, and as a result of that, I think it’s very
hard for members of Congress to spend any more time here
than they absolutely have to. And you’ve seen sort
of the shrinking of the legislative week. You’ve seen members of Congress
sleeping in their offices because they don’t even want
to be said to have real estate in Washington, and you see them
leaving as soon as they can to go back to their districts. Now I don’t subscribe to the
view that that is not work. Knowing my members of Congress
from my home state of Kansas, I can attest that they
work incredibly hard, and they travel, you know
long distances to meet with their constituents, and to address their
constituents’ problems. But the fact remains
that I think that members of Congress these days really
don’t have a lot of time to get to know each other because they
are here for so little time. I also think that there has been
some fascinating research done, and again, I’m no
expert on this. I’m purely a citizen
when it comes to this– about the limitations on debate. The way in which bills
are presented to members, and I can attest to
this a little bit just from anecdotal experience
as a Supreme Court advocate. Much of what I do is to
argue cases about the meaning of statutes, and when you’re
preparing for such an argument, you inevitably look to
the history of laws, to the debates in Congress. Some members of the Supreme
Court are more willing than others to credit those
debates, but you certainly have to do your homework and read. And it is really striking to
go back 30 or 40 or 50 years and read legislative history
of congressional statutes because often on the
floor of Congress, you would see these
remarkably learned debates about subsections
of obscure laws and the effects of
those subsections. And that just does not happen
today, and again, I don’t want to get into a normative
discussion about why that doesn’t happen,
but you know when major laws are
passed today, often you will have
members of Congress saying with a straight place that
they have to pass the law first so that they’ll know what’s
in it, as famously happened in the case of a major piece
of legislation a few years ago. And so I think that there
has been a decline not just in the quantity of
legislation, but in the quality of what we would all consider to be traditional
legislative debate. And again, I think that that is,
I identified that problem first because I think in some
sense, that is the problem from which the other problems
I discussed today really flow.>>Audience Participant:
Does the lack of a common understanding
of how to interpret laws, does that affect the perceived
politicization of the judiciary? I mean, your boss
wrote a book, you know, that thick on how
to interpret laws. Other justices wouldn’t
agree with that. If you don’t have a, you know, you mentioned objective
principles. If you don’t really have
common objective principles, what else do you have
than political leanings?>>Kannon Shanmugam: So I
think that there is, certainly, a vigorous debate about what the
objective principles should be, but I would also say
that when it comes to statutory interpretation, there’s been a significant
amount of convergence among
judges and justices, I think in large part
due to Justice Scalia, that the discussion at a minimum
should focus first on the text of statutes and then
and only then on secondary considerations. So I think the disagreements about those objective
principles are not perhaps as great as they might seem. But certainly, I don’t
mean to minimize the fact that there are legitimate
disagreements, including on the Supreme Court,
about the correct way to go about constitutional
interpretation, and the correct way to go
about statutory interpretation, and those are debates that I think are entirely
legitimate debates to have. Yes, there were several
other questions, so I’ll, I’ll try to answer
quickly so we can get through as many of
them as possible.>>Audience Participant: So I’d like to ask whether you
are interpreting the strength of the Constitution in
terms of its efficiency, in terms of how it conforms
to the original balance of powers concept, or in
any degree in reference to how democratic a system of
government it is providing? And it seems to me
that in recent years, we’ve been reminded of the
lack of democratic origins and the limitations on democracy
where we’ve had a succession of presidents that were not
elected by a majority vote. And we have a Senate
that’s obviously not elected in proportion to the
population having so much power.>>Kannon Shanmugam: Sure, so
as I think all of us learned in you know eleventh
grade American History, or whenever you took American
History in high school, you know, the founders
established not a democracy but a republic, a democratic
republic, to be sure. And if you actually look at the
three branches of government, I think they become
progressively less democratic. Certainly the Congress is
very democratic, at least now, now that we have the
direct election of senators, and it bears remembering
that we did not have that for a large chunk
of our nation’s history. The president was always meant
to be ever-so-slightly insulated by virtue of the Electoral
College, by virtue of a system that interposed electors between
the voters and the president which has resulted, of
course, in recent years in the individual who won the
total popular vote not winning the presidency, and whether
or not you like that system, and whether or not you think
it needs to be changed, there can be no doubt that that
was very much the founder’s original design. And then of course at the end
you have the judiciary which is, you know, intended to be
insulated from democracy with the protections
of life tenure and the selection
process for the judiciary. I do think that while
I think the separation of powers works well in
the sense that the checks and balances are by
and large operating as the founders intended, you
can make the argument that much of what I said today is
about the reduction of sort of the power going
to the people. The rise of judicial
power, the rise of the power of unelected administrative
officials in cabinet departments
and agencies. And you know again, I think that the founders contemplated
some degree of that, but whether they
contemplated the degree to which that has happened in
recent times is I think open to question. Other questions or at least
a couple in the back row? I recognize that gentleman
over there, yes, sir?>>Audience Participant:
Hi there. Well just a wonderful
presentation today. Could you say just a
little bit more though about how you see the
relationship between the first and second problems that you’ve
identified and the third? You seem to suggest
that there’s a causation between the first two and the
third, but you might wonder, you know, why that is. It might be that, or
why wouldn’t you think that a Congress that was
pretty robust and active in an administrative state
and an executive branch that was relatively more
hemmed in would still be to the same sort of
situation we have today with the federal courts
ultimately being the deciders of the constitutionality
of what Congress did? So I can imagine the first
problem not being a problem but still having
perhaps an oversize, over important federal
court system.>>Kannon Shanmugam:
I think my answer to that would be I don’t think
that, that all of this flows from congressional inaction. I think congressional inaction
is probably the greatest cause of the issues that
I discussed today, but I think that
if you had a system where Congress was
robustly legislating, and the Supreme Court
was playing its, and the federal courts were
playing their constitutionally appointed roles which are
of course first to make sure that Congress is acting
within its enumerated powers, and not exceeding the
many, many specific powers that are allocated in Article
One of the Constitution. And number two, to ensure that
individual rights are protected under the individual
guarantees in the Constitution, that that would be
closer to the system that the founders intended, at least if you assume the
founders intended Marbury v Madison and a robust
system of judicial review. And so I think that what is
unusual, and I really mean this in a non-partisan
way, is the extent to which now we are seeing
executive action followed by immediate judicial review. And again, I think if you
want evidence of that, you need look no further than the initiatives concerning
the so-called DREAMERS that I alluded to where you
really have this remarkably symmetrical litigation where you
had President Obama announcing this policy of not
enforcing the immigration laws against the DREAMERS, a
challenge that was brought in what the challengers
thought was a friendly forum. A nationwide injunction, followed by Supreme Court
review, parenthetically, I would note that the Supreme
Court divided four to four because justice Scalia had
passed away in the interim, so they did not actually opine
definitively on the merits of the program which is sort of what has triggered
the second round of Supreme Court litigation,
and then President Trump saying, “I’ve changed my
mind on that policy,” challengers bringing
challenges again in carefully selected districts,
nationwide injunctions issuing, and Supreme Court review. And I think that does
sort of neatly illustrate that this is a pattern. This is not specific
to this administration or any particular
administration. This is the way in which major
policy issues are increasingly being worked out. I feel like I should
not conclude on that joyous note, so — . [Laughter] Sir, a
question in the back row?>>Audience Participant:
Thank you. I was wondering if you
could expound a little bit on you twice cited the Bork
nomination as the beginning of, I think you said a
progressive degradation in the nomination process
or the confirmation process. But that seat was
ultimately unanimously filled for Justice Kennedy, and then
subsequently Justice Ginsberg was seated virtually
unanimously, Breyer was pretty close,
Suter was not far behind, so I’m not sure how
you see that as sort of a straight progression. And I’m wondering if, I mean certainly there’s
political elements in the Bork discussion
that might have been novel, but I’m not quite sure how
you, why you see that as a, as the beginning
of the [inaudible].>>Kannon Shanmugam: Yeah,
I think that’s a fair point. It was not a completely
straight line. You did have Clarence
Thomas in there. That was, you know, an
unusual confirmation, at least until the most
recent confirmation, but I think that there, you
know, it is not an even line. But I do think you could make
it an even line if you started, you know, after Breyer,
because I think that the number of opposing votes had, had gone up with every single
nominee after that, you know. Maybe with, with very
slight variation. But I think that the
broader point does hold. I mean, my point is first that
the Bork nomination was really, you know, the first one,
again, at least in modern times where the debate was really
framed in terms of outcomes. You know starting with Senator
Kennedy’s sort of famous speech about the consequences
of a Bork confirmation, and really progressing
throughout that debate. And again, what we’re seeing and
what I think is very concerning for those of us who are
lawyers who care about the rule of law is that now,
that is taking place with almost every nomination
at almost every level. It used to be that this
practice was very much focused on the Supreme Court,
but now nominees for lower courts are routinely
being asked whether they think that particular decisions
were correctly decided. And you have, you know, again almost this reflexive
opposition to nominees. And while one could blame, you
know, the particular senators who I mentioned for their
opposition to literally everyone who this president
has nominated, I think that there is once
again a bipartisan quality to this dynamic. And as I said, if we had
a Democratic president and a Republican Senate, I’m
sure that there would be, you know, virtually
no one, if anyone, who would get confirmed,
and vice versa. And I think that if we go
through a period like that, it’s going to have really
significant consequences for the federal judiciary
at every level, you know? And of course, if we had a
Supreme Court that was hamstrung for an extended period of time
by no one getting confirmed to the Court, you know,
the Court was able to get through such a period after
the death of Justice Scalia, but I think we could be talking
about an extended period of time where that takes place. Two years or four
years or longer. And I think that it is really
hard to predict the effect that that would have
on the Supreme Court and certainly would have an
effect on the lower courts as well if we had such a period. I see two more questions,
three more questions. I think I only have
time for one. So I’m going to leave it
to our microphone holder to decide who, who was first.>>Audience Participant: I
would just like to comment that in addition to the
fact about the partisanship in the nomination process,
we have organized groups that are advocating
for the judiciary, candidates who have a direct
and a very clear motivation on how they’re going to
vote on certain issues. And the quality of their
nomination wasn’t based on their qualifications, but
the fact that they were pushed by an advocacy group
of some sort.>>Kannon Shanmugam: Well, you
do see these commercials both for and against nominees
which are, you know, perhaps not coincidentally
targeted to so-called swing states or
states where senators may be up for re-election that
sound a lot like campaign ads on the very issues
we’ve been discussing. And you know I think
the moment when I sort of first realized
that, you know, that the confirmation process,
at least for the Supreme Court, you know bears more resemblance
to a political campaign than it does to a traditional
confirmation was when, immediately after President
Obama nominated Merrick Garland to the Supreme Court. The White House, on its website, released a sort of
glossy commercial. There’s really no
other word for it, sort of introducing Merrick
Garland to the American people with the sort of, you
know, uplifting music that you usually see in those
introductions that take place at political conventions. And again, that’s not a
criticism of President Obama because I think the current
president has done much the same thing with his two nominees,
but I do think that, you know, there is a sense in which these
nomination processes look a lot more like election
campaigns, and millions of dollars are being
poured into them. And I think that that is just,
you know, reflective of the fact that again, this process has
come to be more about outcomes from all sides, again
supporters and opponents alike. Well, I think with
that, we’re out of time. I’m happy to answer any other
questions one on one afterwards, but thank you all
again for coming today. [ Applause ]

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